Karnataka High Court

Smt Ameena W/O Sikandar Misrikoti vs The Chief Manager on 15 February, 2024

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                                                  NC: 2024:KHC-D:3669
                                                   RSA No. 101475 of 2022




                          IN THE HIGH COURT OF KARNATAKA,
                                  DHARWAD BENCH

                     DATED THIS THE 15TH DAY OF FEBRUARY, 2024

                                       BEFORE

                         THE HON'BLE MR JUSTICE R.NATARAJ

                 REGULAR SECOND APPEAL NO.101475/2022(PA/DE/IN)


            BETWEEN:

            SMT. AMEENA
            W/O. SIKANDAR MISRIKOTI,
            AGE: 55 YEARS,
            OCC: HOUSEHOLD WORK,
            R/O: PANCH KACHERI ONI,
            DHARWAD - 580 008.
                                                              ...APPELLANT
            (BY SRI C. R. HIREMATH, ADVOCATE)


            AND:

            1.    THE CHIEF MANAGER,
                  CANARA BANK NEAR BUS STAND,
                  HULKOT,
                  TQ AND DIST: GADAG - 582 205.
Digitally
signed by
VINAYAKA    2.    THE DIVISIONAL MANAGER,
BV
                  CANARA BANK REGIONAL OFFICE,
                  HUBBALLI-II, NEAR UNKAL CROSS,
                  HUBBALLI,
                  TQ: HUBBALLI
                  DIST: DHARWAD - 580 031.

            3.    DAVALSAB
                  S/O. IMAMSAB ANNIGERI,
                  AGE: 64 YEARS, OCC: AGRICULTURE,
                  R/O: HULKOTI,
                  TQ AND DIST: GADAG - 582 205.

            4.    ABDULRIYAZ
                  S/O. DAVALSAB ANNIGERI,
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                                     NC: 2024:KHC-D:3669
                                       RSA No. 101475 of 2022




     AGE: 40 YEARS, OCC: AGRICULTURE,
     R/O: HULKOT,
     TQ AND DIST: GADAG - 582 205.

5.   SMT. DAVALBI HUSENSAB BUVAJI,
     AGE: 68 YEARS,
     OCC: HOUSEHOLD,
     R/O: TEACHERS COLONY,
     HULKOTI,
     TQ AND DIST: GADAG - 582 205.

6.   SMT. MAAJAN
     W/O. ABDULMAJID HARAPANAHALLI,
     AGE: 60 YEARS,
     OCC: HOUSEHOLD,
     R/O. BARA IMAM GALLI ONI,
     DHARWAD,
     TQ AND DIST: DHARWAD - 580 008.
                                             ...RESPONDENTS
(BY SRI LINGESH V. KATTEMANE, ADVOCATE FOR R1;
SRI NAVEEN CHATRAD, ADVOCATE FOR R3 AND R4;
NOTICE TO R2, R5 TO R7 ARE SERVED)


      THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 11.10.2022 PASSED IN
R.A.NO.28/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE GADAG, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT    AND   DECREE   DATED     19.02.2022,   PASSED   IN
O.S.NO.199/2020 ON THE FILE OF THE        IV ADDITIONAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS II, AT GADAG,
PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION, DECLARATION AND PERMANENT INJUNCTION.


      THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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                                             NC: 2024:KHC-D:3669
                                               RSA No. 101475 of 2022




                                JUDGMENT

The plaintiff in O.S. No. 199/2010 on the file of the IV

Addl. Civil Judge & JMFC-II, Gadag, has filed this regular

second appeal challenging the judgment and decree dated

19.02.2022 passed therein as well as the judgment and

decree dated 11.10.2022 passed by the Addl. Sr. civil Judge,

Gadag in R.A. No. 28/2022.

2. The suit of the plaintiff was filed for the following reliefs:

A) The plaintiff may kindly be awarded joint 1/5 share in suit schedule properties bearing Gram Panchayat No.66 and Gram Panchayat No.67 located at Hulkoti village, Tq: Gadag and separated by way of metes and bounds in the ends of justice and equity. B) The partition may be effected as per Section 54 of C.P.C.

C) It may kindly be declared that the alleged gift deed executed by defendant No.1 in favour of defendant No.2 in respect of suit schedule properties on dated:

second may 2011, is not binding upon the share of the plaintiff and defendant No.3 and 4 in any manner. D) It may kindly be declared that the alleged loan transaction between defendant No.1 and 2 with defendant No.5 and 6 in respect of the suit schedule properties is not binding upon the share of the plaintiff in any manner in the ends of justice and equity.

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E) The defendants may kindly be permanently restrained from causing obstruction and interference in joint possession of the suit schedule properties to the plaintiff in any manner.

F) The cost of the suit may be awarded in favour of the plaintiffs

G) Any other equitable reliefs may kindly be awarded in favour of the plaintiffs in the ends of justice and equity.

3. The plaintiff claimed that the suit property was

owned and possessed by her father who had purchased it in

terms of a sale deed duly registered. During his lifetime he

constructed a house thereon, where the plaintiff, her

brothers and sisters were residing. She claimed that her

father died in the year 2002 at Hulkoti leaving behind his

wife Smt. Imambi, Plaintiff, defendant No.1 and two

daughters. The plaintiff claimed that after the death of her

father she being a quranic heir, was entitled to an undivided

share. However, the defendant No.1 created fraudulent

documents and submitted a varadi to get his name entered

in the revenue records. He thereafter executed a gift deed in

favour of his son (defendant No.2) without the knowledge

and consent of the plaintiff and other members of the family.

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The defendant No.2 taking advantage of the gift deed

applied for a housing loan along with the defendant No.1, to

construct a house over the suit property. The plaintiff

claimed that the loan raised by the defendant No.2 became

due and the bank took steps to auction the property to

recover the outstanding loan. The plaintiff claimed that she

and defendants No.3 and 4 had neither raised any loan nor

had stood guarantee to the bank for repayment of loan and

therefore they claimed that the loan raised by the defendant

No.2 did not bind their interest. They further claimed that

being the daughters of the deceased Imamsab, the plaintiff,

defendants No.3 and 4 were also entitled to an undivided

share in the suit schedule properties. Therefore the plaintiff

sought for the aforesaid reliefs.

4. The defendants No.1, 2, & 6 did not appear and

hence were placed ex-parte. The defendant No.5 entered

appearance but did not file any written statement. The

defendants No.3 and 4 filed their written statement and

admitted the plaint averments and claimed that they too

were entitled for their 1/5th share each in the suit property.

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5. The trial court after considering the oral and

documentary evidence, decreed the suit in part and declared

that the plaintiff and defendants No.3 and 4 were entitled to

1/5 share in the suit schedule properties, while the

defendant No.1 was entitled to 2/5 share in the suit schedule

properties. It declared that the gift deed dated 02.05.2011

executed by the defendant No.1 in favour of the defendant

No.2 did not bind the interest of the plaintiff, defendants

No.3 and 4. Consequently, it declared that the loan raised

by the defendants No.1 and 2 from the defendants No.5 and

6 did not bind the share of plaintiff, defendants No.3 and 4.

6. Being aggrieved by the said judgment and

decree, the defendants No.5 and 6 filed R.A No.28/2022.

The first appellate court held that the defendants No.5 and 6

had auctioned the suit properties to recover the outstanding

loan therefore the Civil Court had no jurisdiction to entertain

the suit. It held that the plaintiff ought to have challenged

the auction before the Debt Recovery Tribunal as provided

under Section 17 of the SARFAESI Act, 2002. It also referred

to Section 34 of the SARFAESI Act, 2002 and held that the

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jurisdiction of the Civil Court is ousted. Consequently, it

allowed the appeal and dismissed the suit filed by the

plaintiff.

7. Being aggrieved by the said judgment and decree

of the first appellate court, the plaintiff has filed this Regular

Second Appeal.

8. The learned counsel for the plaintiff contended

that the debt recovery tribunal had no jurisdiction to grant

the relief sought for in the plaint more particularly the reliefs

at A, B, C and D. He contended that the ouster of the

jurisdiction of the Civil Court under Section 34 of the

SARFAESI Act is only in respect of any matter that has to be

decided by the tribunal. He submits that the question

whether the plaintiff had share in the suit property and also

whether the gift deed executed by the defendant No.1 in

favour of the defendant No.2, did not bind the interest of the

plaintiff are all questions that have to be determined by the

Civil Court and not by the debt recovery tribunal. In support

of his contention, he relied upon the judgment of a Co-

ordinate Bench of this Court in RFA No.1397/2019. He also

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relied upon the following judgments of the High Court of

Judicature at Bombay in the case of BANK OF BARODA Vs

GOPAL SHRIRAM PANDA AND Others as well as the

judgment of the High Court of Judicature at Madras in

application No.3549/2022 and contended that the suit is

maintainable.

9. Per contra, the learned counsel for the defendants

No.5 and 6 contended that the plaintiff not only sought for

the relief of declaration of her right in respect of the suit

property, but also sought for an order of injunction from

causing any obstruction or interference with the joint

possession of the suit property. He contends that the suit is

collusive inasmuch as the plaintiff despite knowing the gift

deed executed by the defendant No.1 in favour of the

defendant No.2 on 02.05.2011, kept quite till the year 2020

and it is only after the defendants No.5 and 6 initiated

proceedings for recovery of the outstanding loan that the

present suit is filed. He therefore submits that the plaintiff

has attempted to take advantage of the fact that she did not

join in the execution of the documents relating to the loan

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raised by the defendant No.2. He contends that no suit or

other proceedings is maintainable before the Civil Court

against the defendants No.5 and 6. He therefore contends

that the first appellate court had rightly dismissed the suit

filed by the plaintiff.

10. I have considered the submission made by the

learned counsel for the plaintiff as well as the learned

counsel for the defendants.

11. This appeal was admitted to consider the

following substantial question of law:

"Whether the Debt Recovery Tribunal could have granted the relief sought for by the plaintiffs at prayer nos. A to D? If not, whether the suit before the Civil Court was maintainable for the said reliefs?"

12. At the time of hearing, the learned counsel for the

plaintiff has filed a memo stating that he would restrict the

relief at "A to D" before the Civil Court and that the plaintiff

would pursue the relief at "E" before the Debt Recovery

Tribunal, Bangaluru.

13. The memo is placed on record.

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14. A perusal of Section 34 of the SARFAESI Act

shows that the jurisdiction of Civil Court is ousted only in

respect of any matter which a tribunal is empowered to

determine under the SARFAESI Act. In the case on hand,

the plaintiff being the daughter of Imamsab claimed that she

is entitled to an undivided share in the suit property.

Therefore the Debt Recovery Tribunal could not have granted

the relief and could not have declared that the plaintiff has

an undivided share along with the defendants No.1, 3 and 4.

Therefore to this extent, the suit was maintainable. If the

suit was maintainable, and if the plaintiff was entitled to an

undivided share, then it would only be consequential that the

gift deed executed by the defendant No.1 in favour of the

defendant No.2 did not bind the plaintiff. However, the

plaintiff was not entitled to any relief insofar as the measures

taken by the defendants No.5 and 6 are concerned. If the

plaintiff succeeded in the suit for partition and separate

possession of her share, then, she would be clothed with the

locus standi to challenge the measures taken by the

defendants No.5 and 6 before the Debt Recovery Tribunal as

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provided under Section 17 of the SARFAESI Act. Therefore

the impugned judgment and decree passed by the first

appellate court warrants interference.

15. Consequently, the substantial question of law

framed by this Court is answered in favour of the plaintiff

and against the defendants No.5 and 6 and it is held that the

suit was maintainable insofar as the relief at "A, B, C and D"

are concerned. However, the plaintiff has to approach to

competent tribunal under Section 17 of the SARFAESI Act

insofar as the relief "E" and other reliefs are concerned. As

the defendants No.5 and 6 were placed ex-parte, an

opportunity deserves to be granted to them to contest the

suit on merits.

16. In view of the above, this appeal is

allowed in part and the impugned judgment and decree

dated 11.10.2022 passed by the Addl. Sr. Civil Judge, Gadag

in R.A. No. 28/2022 is set aside and the judgment and

decree dated 19.02.2022 passed by the IV Addl. Civil Judge

& JMFC-II, Gadag, in O.S. No. 199/2010 is also set aside.

The case is remitted back to the trial court for fresh disposal.

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It is open for the defendants No.5 and 6 or any person

claiming under them to file written statement and contest

the suit on merits. The trial court shall consider the suit only